Court File and Parties
COURT FILE NO.: F713/19
DATE: August 19, 2020
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Laura Beth Wallace, applicant
AND:
David John Wallace, respondent
BEFORE: TOBIN J.
COUNSEL: Mark Shields for the applicant
Trent A. Zimmerman for the respondent
HEARD: written submissions filed
ENDORSEMENT on costs
[1] The respondent (“father”) brought a motion for an order granting him regular parenting time with the parties’ children.
[2] The central issues on the motion related to the time the father was to have the children in his care and responsibility for transporting the children to and from his parenting time.
[3] The motion was argued on July 31, 2020 and written reasons were released the same day.
[4] The order provided that: (1) the father’s parenting time with the children before the two older ones returned to school would be on one weekday overnight, on alternate weekends and electronically twice per week; (2) Once the two older children return to school, the father would have parenting time on alternate weekends and twice per week electronically. The return to school schedule meant the children did not miss school so as to accommodate the father’s parenting time; (3) Transportation responsibilities were to be shared equally; (4) The maternal grandfather was not to attend at access exchanges; and (5) The paternal grandmother was to facilitate the access exchanges.
[5] The father seeks his costs fixed in the amount of $13,229.48 payable within 30 days out of proceeds of sale of the matrimonial home presently held in trust.
[6] The mother’s position is that the father be allowed costs fixed in the amount of $4,500 payable 30 days after the final disposition of the application, including any appeals, if any.
[7] The father argues that he is entitled to costs on a full indemnity basis because he was the successful party and he delivered a R. 18 offer, which was “equal to and even better than some of the orders he judicially obtained.”[^1]
[8] The mother argues that the father’s offer was not more favourable to him than the results of the motion.
[9] I find that the father was more successful than the mother on this motion.
[10] The mother wanted the father’s parenting time to increase gradually. She was not successful in this request.
[11] The mother wanted the father to be completely responsible for transporting the children to and from parenting time. She was not successful in this request.
[12] The mother was successful having electronic parenting time take place twice a week instead of a minimum of twice a week, as requested by the father.
[13] There is no suggestion made by the mother that the father, as a successful party, behaved unreasonably such that he should be deprived of all or part of his costs. The father did deliver an offer to settle.[^2]
[14] Rule 18(14) provides that a party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery[^3] of costs from that date if certain conditions are met. Rule 18(15) places the burden of proving that the order is as favourable as or more favourable than the offer on the party who claims the benefit of subrule (14). Failure to achieve success on each and every issue will place the case outside the ambit of r. 18(14).[^4]
[15] The father’s offer to settle would have resulted in the children missing a number of days of school each week. The offer did not address, as the order did, a parenting schedule following the two older children’s return to school. I accept the father’s explanation that he did not address this contingency because the government had not released its pandemic return to school plans when the offer was made. In other respects, the offer to settle was more favourable: the offer requested electronic parenting time of once a week and the order was for twice a week; the offer provided that the father would be responsible for 60 percent of the parenting time driving and the order provided for 50 percent responsibility.
[16] Even though the father did not achieve success on each and every issue contained in the offer, the court may take into account any written offer to settle, the date it was made and its terms even if subrule (14) does not apply when exercising its discretion.[^5]
[17] I take into account the r. 24(12) factors in setting the amount of costs as well.
[18] This was an important case for both parties.
[19] The issues decided by the court were not complex.
[20] The father submits that the mother acted unreasonably in this motion. She did not provide the respondent with an offer to settle. I agree this was unreasonable behaviour.
[21] The father’s counsel docketed 25.75 hours on account of this motion. The mother’s counsel docketed 10.90 hours. I find that the time spent by father’s counsel was excessive and out of proportion to the issues raised in this case.
[22] I take into account that the father delivered an offer in an attempt to settle this matter, while the mother did not. The hourly rates charged by the father’s counsel were not unreasonable.
[23] Having regard to the considerations addressed in this endorsement, I find that a proportionate and reasonable costs outcome in this case is that the mother pay to the father costs in the amount of $5,200 within 60 days. If the parties agree and the necessary documentation is signed, the funds may be paid out of the net proceeds of the sale of the matrimonial home currently held in trust.
“Justice B. Tobin”
Justice B. Tobin
Date: August 19, 2020
[^1]: See respondent’s costs submissions, at para. 8. [^2]: See r. 24(4) and (5). [^3]: The Rules do not provide for full indemnity, as requested by the father in his costs submissions. [^4]: Osmar v. Osmar, 2000 20380 (ON SC), 2000 CarswellOnt 2343, at para. 5. [^5]: See r. 18(16).